[00:00:00] Speaker 04:
3-4-2, Slade versus Regina.

[00:00:50] Speaker 04:
Good morning.

[00:01:12] Speaker 01:
What's good about it?

[00:01:14] Speaker 01:
It's the last argument.

[00:01:17] Speaker 01:
Yes, that's good.

[00:01:18] Speaker 02:
OK.

[00:01:18] Speaker 02:
So the question before you this morning, in our case, is one of claim interpretation.

[00:01:25] Speaker 02:
The standard review is de novo.

[00:01:28] Speaker 02:
This is an appeal from a PTAB interference.

[00:01:31] Speaker 03:
The PTAB explanation of that claim term seems sort of logical.

[00:01:39] Speaker 03:
Why is it not logical?

[00:01:43] Speaker 02:
PTAB, like our colleagues here, would have you believe this claim is about what either and or mean.

[00:01:50] Speaker 02:
And that's it.

[00:01:51] Speaker 02:
And either, you know, we make no contention that either is not a word commonly used in English language.

[00:01:57] Speaker 02:
We make no contention that or is not commonly used.

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But as you can see, there's more if you look at the claim, which is on page seven of our brief.

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And in particular, the part that's highlighted,

[00:02:10] Speaker 02:
There's a lot more to that claim and particularly the limitation that's underlined called we've called the either or limitation, either or limitation, than simply what either and or mean.

[00:02:23] Speaker 02:
We think that language is

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It's not defined in any dictionary.

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It's not defined in usage language.

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It's in usage dictionaries.

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It's talked about as being improper use.

[00:02:35] Speaker 02:
Yeah, it's grammatically ignorant.

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So I think it's more than that.

[00:02:39] Speaker 02:
I think it's not only grammatically ignorant.

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It's not understandable.

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Regular people can't understand it.

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Which is why we're here.

[00:02:46] Speaker 02:
That's correct.

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And we think we have to go.

[00:02:49] Speaker 02:
We think the board erred in stopping and pretty much

[00:02:53] Speaker 02:
going on the language of the claim and living with that.

[00:02:55] Speaker 02:
We think there's a lot more that's very instructive about what either or means in the intrinsic record that's very helpful to you.

[00:03:04] Speaker 02:
So first of all, I just want to point out that there are two... So you agree that your construction is at least one.

[00:03:13] Speaker 04:
And that if we were to look at the either-or-or, that construction is properly only one.

[00:03:20] Speaker 04:
So you've got to sort of avoid that to get to at least one.

[00:03:25] Speaker 04:
uh... yet we weren't part of the two interpretations in front of you ours is that you're or or means at least one and that is consistent with water friends argued during prosecution in order to get the case allowed yeah i i know you rest on prosecution i think i understand what you're saying but tell me why i'm wrong my read of that is yes constantly faced with prosecution which is often very confusing but originally they had claims that said

[00:03:53] Speaker 04:
So somewhere in the prosecution, no matter what they said about at least one, they had claims that said that.

[00:03:59] Speaker 04:
They got rid of those claims and they added claims that said this either or language, which is different than the phrase they used otherwise only once.

[00:04:11] Speaker 04:
or at least one, I'm sorry.

[00:04:13] Speaker 04:
So sort of even applying statutory construction suggests that there's a difference between either or or and at least one.

[00:04:23] Speaker 04:
So I take the snippet of the prosecution history that you rely on, but it's hard for me to give that just insurmountable weight, given what else went on in prosecution.

[00:04:35] Speaker 02:
Well, I think the prosecution is rather modeled, and I don't think they use modeled.

[00:04:41] Speaker 02:
It's not, they don't use, I think they're pointing to claim 10, and they say, claim 10, it supports our only one position.

[00:04:49] Speaker 02:
It doesn't, it doesn't say only one, it says one.

[00:04:53] Speaker 02:
doesn't, and it's out of, it's not in any context of what either or or means.

[00:04:57] Speaker 02:
We think the most clear language on either or or is in the prosecution history where they talk about Claim 70.

[00:05:05] Speaker 02:
Claim 70 is what was introduced in the middle of prosecution, and I'll point you to where that is.

[00:05:15] Speaker 02:
It was introduced in an amendment on April 20, 2015, during prosecution.

[00:05:22] Speaker 02:
And on Appendix page 2980, you'll see where in that amendment Claim 70 was introduced, and you'll also see at the bottom of that page, 2980, is the either-or limitation.

[00:05:37] Speaker 02:
They went on to, two pages later, on 2982, in support, in identifying support for claim 70, they identified paragraph 153, which is one of the at least one paragraphs that are throughout the specification.

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There are several paragraphs in the specification that use the at least one language.

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The specification never says a thing about either or or.

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let alone define it.

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But there are numerous instances such as paragraph 153 where the at least one language is being utilized to discuss the point mutation issue of the point mutations of the AB or D gene.

[00:06:19] Speaker 02:
Most compelling we think is on appendix page 692 and it's also on page 15 of our brief where they, this is a subsequent amendment,

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or subsequent response where they have a heading.

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It says 1A, independent claim.

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It's talking about the claim that we're saying provides support for our claim interpretation and is the one that ultimately issued.

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Independent claim 70 requires at least one point mutation in an SBE2A gene.

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We think this statement says it all.

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It's talking about the SPEA2 gene and the one-point mutation.

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And it points to claim 70.

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If you look at claim 70, there's no other discussion about point mutations except in the either-or-or language.

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So we think this is a very direct statement about what that means.

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And everything else is extremely contrived.

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Anything else that they want to look at the prosecution history to say is helpful to them is contrived by comparison to that.

[00:07:21] Speaker 02:
And to affirm the board, you will have to say that it doesn't matter what they said about claim 70 in this heading.

[00:07:31] Speaker 02:
It doesn't matter.

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We're not going to pay any attention to it.

[00:07:35] Speaker 02:
They said very clearly what the at least one

[00:07:40] Speaker 02:
language correlates to.

[00:07:41] Speaker 04:
Didn't they have other claims?

[00:07:42] Speaker 02:
They did, and they broke them separate.

[00:07:44] Speaker 04:
Let me finish my question.

[00:07:45] Speaker 04:
I'm sorry.

[00:07:45] Speaker 04:
Sorry.

[00:07:45] Speaker 04:
Claims 50 and 67, which explicitly said at least one.

[00:07:51] Speaker 04:
And so can't we surmise, because I'm not sure.

[00:07:54] Speaker 04:
I take your point about the clarity or lack thereof of prosecution history, but there's nothing crystal clear about it.

[00:08:01] Speaker 04:
So can't we construe the fact that those other claims used at least one, and then they changed it to the either or language?

[00:08:10] Speaker 04:
of some import, right?

[00:08:12] Speaker 02:
There were other claims that had at least one that were in prosecution while the Claim 70 was pending.

[00:08:19] Speaker 02:
So that was, I think, 59, 67, and 68.

[00:08:23] Speaker 02:
They are separately addressed in the same amendment

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that I've referred to on page 15 of our brief, there's a separate heading to talk about those.

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And I think the language is, they also have the least one language.

[00:08:39] Speaker 02:
Right.

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So they are, you know, they're not grouping them all together.

[00:08:42] Speaker 02:
It's not that they grouped them together and they say,

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Well, the claim 70 just got caught up with these others, and these are ones we really meant to say the at least one language applies to.

[00:08:51] Speaker 02:
Claim 70 is separately talked about with regard to the point mutations, and they say that is all about at least one.

[00:08:59] Speaker 02:
When they get to the other claims, they do it separately.

[00:09:01] Speaker 02:
They don't group them all together.

[00:09:03] Speaker 02:
It's separate.

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If you go on to the rest of that amendment, there's a paragraph also on page 15 that begins the subject application.

[00:09:17] Speaker 02:
And you can see that it again, all under the heading about claim 70, talks about at least one point mutation.

[00:09:26] Speaker 02:
And right after that, there's a paragraph that starts out with, therefore, applicants claim 70.

[00:09:32] Speaker 02:
And they repeat the either or limitation there.

[00:09:37] Speaker 02:
They talk about the at least one in the preceding paragraph right at the end, and then they say, well, claim 70 says either or.

[00:09:45] Speaker 02:
We think that's a pretty clear correlation.

[00:09:47] Speaker 02:
We don't understand what else they could be talking about there, and they have not given any adequate explanation of what that is.

[00:09:57] Speaker 02:
Well, the board's decision, we don't think, gives you a whole lot of reason to affirm.

[00:10:02] Speaker 02:
They didn't apply the BRI.

[00:10:03] Speaker 02:
And the BRI is important here, because there are two interpretations that are in front of you.

[00:10:09] Speaker 02:
There's the one that we like, which is the at least one, which they used during prosecution to get this case allowed.

[00:10:15] Speaker 02:
And then there is the only one interpretation that they now use to try to get out from this interference.

[00:10:22] Speaker 02:
Clearly, at least one is broader than only one.

[00:10:27] Speaker 02:
In addition, if they used the at least one language in conjunction with claim 70, how can they not say that was reasonable?

[00:10:38] Speaker 02:
Claim 70 is what issue?

[00:10:39] Speaker 02:
So we think the BRI test, which the board did not properly apply, clearly mandates that our interpretation is appropriate.

[00:10:47] Speaker 03:
You know, that's the same argument we were hearing in an earlier case this morning.

[00:10:53] Speaker 03:
And it raises a kind of a fundamental

[00:10:58] Speaker 03:
puzzle for me and that is when the board says we use the broadest reasonable interpretation does that mean it has to in every case use the broadest reasonable interpretation no matter whether it makes sense or not or does that mean the board has authority

[00:11:21] Speaker 03:
to use an interpretation that is broader than you might kind of interpretations the court makes.

[00:11:34] Speaker 03:
there's a range of choice within that broadest reasonable interpretation.

[00:11:39] Speaker 03:
Do you view it as a mandate that whatever the lexicographical, if that's the word, meaning of broad, they have to use it?

[00:11:53] Speaker 03:
Is that how you're viewing it?

[00:11:56] Speaker 02:
I believe that it's an objective standard, and I think there's a lot less to guess here about, because these are words out of their own mouths, if you will, written.

[00:12:08] Speaker 02:
And they used both.

[00:12:09] Speaker 02:
And now they're clearly moving from a broad one to a narrow one.

[00:12:15] Speaker 03:
To a more narrow than the broadest possible.

[00:12:18] Speaker 02:
Yes, that's clearly the case.

[00:12:21] Speaker 02:
contrary to what they actually said.

[00:12:23] Speaker 02:
It's not like we're having to infer what they said in that heading.

[00:12:26] Speaker 02:
The heading says, requires at least one.

[00:12:30] Speaker 02:
So I can't help you decide what BRI should be in general, but I think our case mandates that our interpretation is appropriate.

[00:12:41] Speaker 02:
That's fair enough.

[00:12:42] Speaker 04:
You're in to your response.

[00:12:44] Speaker 01:
I will save the rest for everybody.

[00:12:45] Speaker 01:
Thank you.

[00:12:57] Speaker 00:
May it please the court, my name is Christopher North and I'm representing the party of Regina.

[00:13:01] Speaker 03:
Do we have to find his interpretation to be unreasonable in order to uphold yours and the board's?

[00:13:11] Speaker 03:
Or is it enough for us to say, well, they're both kind of in that range?

[00:13:16] Speaker 03:
What do we do?

[00:13:19] Speaker 00:
I think that

[00:13:21] Speaker 00:
the board's interpretation is the broadest reasonable, and that his interpretation is, respectfully, unreasonable.

[00:13:31] Speaker 00:
And so I don't know whether you have to find it unreasonable.

[00:13:36] Speaker 00:
It is unreasonable.

[00:13:38] Speaker 00:
Why?

[00:13:39] Speaker 00:
Because, as this court said yourself in Schumer versus lab computer systems,

[00:13:50] Speaker 00:
reading or as and contradicts the plain meaning of or.

[00:13:57] Speaker 00:
I'll point out, I wanted to rebut something that said, and with respect, I don't believe that it is necessarily grammatically ignorant to use either with more than two alternatives.

[00:14:12] Speaker 00:
Webster's at Appendix 3002 says that either its definition is used as a function word between two or more coordinate words, phrases, or clauses.

[00:14:29] Speaker 00:
So it's within Webster's definition itself either can be used

[00:14:35] Speaker 00:
with more than two alternatives separated by or.

[00:14:38] Speaker 04:
I don't necessarily agree with your construction, except that your friend, as you did this morning, makes a great deal of the language in the prosecution history.

[00:14:48] Speaker 04:
And that counts.

[00:14:49] Speaker 04:
That's the intrinsic record.

[00:14:51] Speaker 04:
So how do you get around or explain away the statements that he's been talking about this morning?

[00:14:57] Speaker 00:
I think it's really very simple.

[00:15:00] Speaker 00:
And perhaps a little bit of background helps.

[00:15:05] Speaker 00:
In the examples that are described in the Regina patent, they began attempting to delete the genes, all three of the SBE2A genes.

[00:15:15] Speaker 00:
They're in three genomes.

[00:15:17] Speaker 00:
And they found that there was problem with getting the wheat to grow when they did that.

[00:15:22] Speaker 00:
They then did an experiment in which they had two deletions and they created point mutations and cross-spread those together in order to make wheat that had three null mutations, two of which were deletions and one of which was a point mutation.

[00:15:38] Speaker 00:
And that wheat grew.

[00:15:39] Speaker 00:
That solved the problem.

[00:15:41] Speaker 00:
And they concluded that if one was sufficient, more than one might be good as well.

[00:15:49] Speaker 00:
And they went to the patent office with those claims

[00:15:52] Speaker 00:
that had the language at least one.

[00:15:54] Speaker 00:
And the examiner kept rejecting those claims.

[00:15:57] Speaker 00:
And so after those claims had been rejected a couple of times, they came back with a claim, a new independent claim that was directed to what was the working example.

[00:16:08] Speaker 00:
The examiner was rejecting the claims on the grounds that they weren't enabled and they weren't described.

[00:16:14] Speaker 00:
And they came back with a claim that was directed to the working examples, where you have two deletions and one point mutation.

[00:16:21] Speaker 00:
eventually they had to cancel their at least one claims.

[00:16:25] Speaker 00:
But while the at least one claims were still pending with the claim directed to the examples, they made an argument that all of those claims met a requirement that they had found was necessary for getting the wheat to grow well.

[00:16:42] Speaker 00:
And that requirement was having at least one point mutation.

[00:16:45] Speaker 00:
You can argue correctly all day long that one point mutation meets the requirement of at least one without saying that one is equal to at least one in terms of scope.

[00:17:00] Speaker 00:
I think that is the simple and easy explanation for all of what they've pointed to in the prosecution history.

[00:17:07] Speaker 00:
One is indeed at least one, but one is not equal to at least one.

[00:17:12] Speaker 00:
So all of those arguments are not equating.

[00:17:14] Speaker 00:
They're simply pointing out to the examiner that we discovered how to make it grow.

[00:17:20] Speaker 00:
And this example that we've described in our claims did grow because it meets that requirement.

[00:17:31] Speaker 00:
One thing that you need to go to is at the end of the prosecution.

[00:17:37] Speaker 00:
Those narrower claims that Regina put in were allowed only after the broader claims were rejected and after an interview with the examiner.

[00:17:47] Speaker 00:
The examiner recorded in that interview the argument that was made.

[00:17:51] Speaker 00:
And he recorded in his interview summary that Regina had pointed out that the claims 70 to 72 that eventually were allowed were described in examples 11.

[00:18:00] Speaker 00:
That's the example of the specification that describes the crossing of wheat with two deletions and one point mutation.

[00:18:11] Speaker 00:
Where implants were triple null for the SPE2A genes and two of the alleles were deletion mutants.

[00:18:18] Speaker 00:
and one of the alleles was a null allele comprising the point mutation.

[00:18:21] Speaker 00:
The examiner understood at the end, when he allowed the claims, that he was allowing claims directed to the working examples.

[00:18:30] Speaker 00:
And that, I think, is what got him to eventually allow the claims in his patent.

[00:18:44] Speaker 00:
This court has, you know, he says it's not about either or, but this court has interpreted either or.

[00:18:51] Speaker 00:
At least two cases that are directly on point that aren't in his brief.

[00:18:58] Speaker 00:
Custom signals versus applied concepts.

[00:19:01] Speaker 00:
This court agreed with construction of or and either in their common usage.

[00:19:06] Speaker 04:
Well, the question isn't whether they're in his brief.

[00:19:08] Speaker 04:
The question is whether they're in your brief.

[00:19:09] Speaker 00:
They are in my brief.

[00:19:11] Speaker 00:
They were in our motion before the board.

[00:19:16] Speaker 00:
This court found that those are not technical terms and that if a divergent specialized usage was intended, it was required to be clearly explained.

[00:19:24] Speaker 00:
I don't believe no matter how many times the attorney prosecuting Regina's patent application said that claim 70 required at least one point mutation, it changes its meaning of either or to mean at least one.

[00:20:08] Speaker 02:
The only clear correlation between what either or means is in the prosecution history.

[00:20:18] Speaker 02:
It's not anywhere else in the intrinsic record.

[00:20:20] Speaker 02:
Claims are not clear.

[00:20:23] Speaker 02:
The specification has language that's consistent with at least one, but the only clear correlation is in that passage of the prosecution history I talked about.

[00:20:37] Speaker 02:
If our opponents had wanted to have claim 70 read as only one, they should have put it in the claims.

[00:20:45] Speaker 02:
They shouldn't have argued it the way they did, but they chose to.

[00:20:48] Speaker 02:
Now they want to have it a different way.

[00:20:50] Speaker 02:
In their opening brief to the board, they didn't even bring up the prosecution history.

[00:20:55] Speaker 02:
They relied on an expert who never looked at the prosecution history until we put it in front of them at deposition.

[00:21:01] Speaker 02:
And yet he came out with the

[00:21:04] Speaker 02:
a view that the interpretation was only one.

[00:21:08] Speaker 02:
I don't know how you can do that when you don't look at the most relevant part.

[00:21:11] Speaker 02:
As far as custom goes, first of all, it doesn't use either or or, which is, as we pointed out, ungrammatical.

[00:21:19] Speaker 02:
It talks about either and or.

[00:21:21] Speaker 02:
And when they do it, they talk about, the court talks about that in context of everything else.

[00:21:27] Speaker 02:
So we don't think it mandates, as our opponents would have you agree to, that either or is simple stuff.

[00:21:35] Speaker 02:
And that's all you have to do to decide this case.

[00:21:38] Speaker 02:
Unless you have any other questions, I'm all done.

[00:21:42] Speaker 04:
Thank you.